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The Attorney General’s Department was already battered in the public eye when the Supreme Court accused it last week of filing false charges under fake laws. Further, last March the International Group of Eminent Persons denounced the dual role played by the department in the Presidential Commission of Inquiry into human rights abuses in the country.
The department is also facing criticism over its failure to fight impunity relating to disappearances as well as the implementation of laws relating to torture.
Last week, the Supreme Court suspended criminal charges filed in the Colombo High Court by the Attorney General’s Department against Tiran Alles and Dushyantha Basnayaka, the chairman and director of a company that published the opposition newspaper “Mawbina.”
The government wanted the newspaper closed as part of a strategy to suppress the opposition media’s support for a former government minister, who is now a rival of the regime.
The Supreme Court was quoted as stating, “The Attorney General's Department is attempting to frame charges in some way against Alles to make him suffer and to damage his goodwill.”
Filing false charges is a matter of grave concern. The filing of fabricated cases by the police, and sometimes by the Attorney General's Department, is a serious problem that affects the lives of innocent persons. It can also be said that the case filed against Tamil journalist J.S. Tissainayagam is a false charge based on fake laws. Tissainayagam, a magazine editor, was detained under the anti-terrorism law and has been in jail for nine months.
The manipulation of emergency and anti-terrorism laws provides opportunities for the state to fabricate charges against anyone it wishes to persecute through fake prosecutions. Persons so charged can be deprived of bail and remain in detention for long periods. Within a restricted interpretation of the law, they can even be pronounced guilty by a court and made to spend long years in prison.
Many such persons do not have the wealth required to fight these cases. In addition, witnesses can be intimidated so that even a fake charge can be “proven” true.
The Supreme Court’s pronouncement on this matter is of great importance. However, given the widespread nature of this practice and its deep entrenchment within the criminal justice framework of Sri Lanka, much more needs to be done.
Fabricating charges and falsely accusing people, either by civilians or by those who represent state agencies, are crimes under the Penal Code. The perpetrator of these crimes is subject to the same punishment that would apply to the accused if the charges were true. For example, if a person is accused of a crime punishable by a life sentence, the perpetrator who knowingly filed a false charge can be punished with the same sentence.
One of the relevant provisions of the Penal Code is as follows:
False charge of offence made with intent to injure.208. Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both: and if such criminal proceeding be instituted on a false charge of an offence punishable with death or imprisonment for seven years or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
In this instance, it is the Attorney General's Department itself that has been accused of filing false charges on fake laws. It is an accusation that is as grave as can be. It should not be allowed to pass purely by way of a comment from the court. The matter of how, why and who was engaged in this violation of the law should be investigated and prosecuted, if equality before the law is a doctrine that still operates in Sri Lanka.
Many close observers perceive the expected appointment of Peiris, who is now a private practitioner of law and who on several occasions has been the government’s spokesman at international meetings, as a sign of the further politicization of the institution.
Many people in the department who have refused political allegiances will be discriminated against. Further, the decision is seen as a step toward appointing Peiris the next chief justice, when the incumbent retires sometime in the coming year.
The independence of the judiciary will continue to suffer due to the appointment of persons with close ties to the regime and who have even been spokesmen for the regime.
It is unfortunate that the once-hallowed institution of the chief justice will be known in the future as the chief of a system of injustice.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilanka-lawlessness.com.)
